Moral Traditions series

Law, Religion, and Morality

Cathleen Kaveny

• Publisher: Georgetown University Press
• Year: 2016
• ISBN:
  9781626163041
• Topic: Theology & Religion
• Subtopic: Christian Theology

Religious traditions in the United States are characterized by ongoing tension between assimilation to the broader culture, as typified by mainline Protestant churches, and defiant rejection of cultural incursions, as witnessed by more sectarian movements such as Mormonism and Hassidism. However, legal theorist and Catholic theologian Cathleen Kaveny contends there is a third possibility—a culture of engagement—that accommodates and respects tradition. It also recognizes the need to interact with culture to remain relevant and to offer critiques of social, political, legal, and economic practices.

Kaveny suggests that rather than avoid the crisscross of the religious and secular spheres of life, we should use this conflict as an opportunity to come together and to encounter, challenge, contribute to, and correct one another. Focusing on five broad areas of interest—Law as a Teacher, Religious Liberty and Its Limits, Conversations about Culture, Conversations about Belief, and Cases and Controversies—Kaveny demonstrates how thoughtful and purposeful engagement can contribute to rich, constructive, and difficult discussions between moral and cultural traditions.

This provocative collection of Kaveny's articles from Commonweal magazine, substantially revised and updated from their initial publication, provides astonishing insight into a range of hot-button issues like abortion, assisted suicide, government-sponsored torture, contraception, the Ashley Treatment, capital punishment, and the role of religious faith in a pluralistic society. At turns masterful and inspirational, A Culture of Engagement is a welcome reminder of what can be gained when a diversity of experiences and beliefs is brought to bear on American public life.

Part 1

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Law as a Teacher

This part explores the purpose and function of law in a pluralistic society. In the United States, we take the rule of law very seriously; in fact, most of our most acerbic debates over the years have involved questions of what the law should require or prohibit in order to promote the overall good of the community. These are complicated questions, because they involve a difficult mixture of morality and pragmatism. The law functions by regulating actions in an immediate way, by attaching penalties (e.g., prison time) or rewards (e.g., tax breaks) to certain kinds of activities. It also functions, however, in a less immediate and less direct way, by encouraging the citizenry to view the actions it regulates in a certain moral light. Law, in other words, has an important pedagogical function.¹ It shapes our political and moral values, including our response to other human beings.

We cannot forget, for example, the terrible regime of “Jim Crow” laws, which imposed a harsh regime of segregation and degradation upon African-Americans in the South for a century after the Civil War. As civil rights activists such as Martin Luther King, Jr. well understood, the corrosive effect of those laws extended beyond their actual requirements and prohibitions. The values propelling the Jim Crow regime wormed their way into the hearts and minds of the citizenry, not only encouraging Caucasians to view themselves as superior to their African-American neighbors, but also inculcating a sense of inferiority and helplessness in African-Americans themselves. As historians of the Civil Rights movement have pointed out, it was the black churches that enabled African-Americans in the South to reclaim their sense of authority, agency, and integrity. This experience, in turn, empowered many people to overturn Jim Crow and secure the passage of the Civil Rights Acts.

Why not take the experience of the Civil Rights Movement as a stellar example supporting the position that civil law should always correspond as closely as possible with true moral judgments? Unfortunately, the question is far more complicated, as another example from America’s past illustrates. Alcoholism was a pressing social problem in the late nineteenth and early twentieth centuries, particularly in cities teeming with immigrants. Alcohol exacerbated poverty, as breadwinners often spent their paltry salaries on liquor rather than their struggling families. Alcohol sparked domestic violence, as inebriated men released their anger and frustration upon their wives and children. Social reformers, therefore, had good reason to think that banning alcohol would improve social welfare. The influence of temperance groups reached its zenith in 1919, when Congress ratified the Eighteenth Amendment to the Constitution, which prohibited the manufacture, sale, or transportation of intoxicating liquor within the United States and its territories. While the law was enforced in some areas of the country, such as the South, it was defied and circumvented in others, such as the Northeast. Large quantities of alcohol were smuggled into the country, as a black market was created and maintained by organized crime. No matter what its moral merits were, in the end, Prohibition failed for two reasons: it was practically unworkable, and it lacked the moral support of a significant number of Americans, who did not think that consumption of alcohol was always wrong. Increasingly unpopular as the country entered the Great Depression, Prohibition was repealed by the Twenty-First Amendment in 1933.

Quoting the fifth-century Isidore of Seville (d. 636), St. Thomas Aquinas (d.1274) neatly encapsulated the several qualities that sound law must demonstrate: “Law shall be virtuous, just, possible to nature, according to the custom of the country, suitable to place and time, necessary, useful; clearly expressed, lest by its obscurity it lead to misunderstanding; framed for no private benefit, but for the common good.”² While it is important for law to accord with virtue and justice, it is equally essential for it to be “possible to nature” and “according to the custom of the country.” Otherwise, as the lessons of Prohibition demonstrate, a widespread backlash may undermine not only the particular law in question, but commitment to the rule of law itself. Law, as Aquinas himself recognized, can lead persons to moral virtue only gradually.

In more recent times, Pope Francis has recognized the need to balance the pedagogical ideals of the law with sensitivity to the actual situation of the people that the law purports to govern. Law, he recognizes, is not an end in itself. Taking the law that governed the ancient Hebrews as an example, he criticized the perennial temptation among the legal scholars to see the law they study as a perfect, closed system. Instead, Pope Francis views law in a more pragmatic and flexible manner, rather like a map for a long trip that will undoubtedly result in unexpected surprises and even setbacks. He observed that the scholars of the Jewish law “had forgotten that they were a people on a journey. And when one is on a journey one always finds new things, things one does not know.” The law, like the journey, is not an end in itself. It is a path, “a pedagogy,” toward “the definitive manifestation of the Lord.”³ Good lawmakers, whether they are dealing with religious or secular matters, need to keep the ultimate purpose of the law in mind. At the same time, they need to remain flexible about its implementation in order best to achieve that purpose.

The chapters in this part attempt to grapple with the tensions between the pedagogical and pragmatic qualities of law across a range of contemporary topics with both religious and secular significance, including abortion, assisted suicide, immigration policy, the death penalty, and torture. An implicit topic running throughout the chapters is a challenge to the pedagogical function of law that Aquinas was never forced to face: the significant and growing moral pluralism that characterizes our liberal democracy. This problem is compounded by the fact that our federal government is limited; plenary power to work out the details of day-to-day life remains in the states. So, for example, until the recent Supreme Court decision giving constitutional protection to same-sex marriage, some states permitted the practice while others did not. Some states practice the death penalty while others have removed it from the available list of punishments. How do we decide which policy variations are permissible among the several states, and which must be rejected, like slavery and segregation, as lethal threats to our common commitment to human dignity? As the following chapters illustrate, this is a question that admits of no easy resolution.

Notes

1. I discuss the nature and limits of the pedagogical function of law at more length in Law’s Virtues: Fostering Autonomy and Solidarity in American Society (Washington, DC: Georgetown University Press, 2012).

2. Isidore of Seville, Etymologies, v., 21, quoted in Thomas Aquinas, Summa Theologica, I-II, q. 95, art. 3, ob. 1.

3. Pope Francis, “The God of Surprises,” Morning Meditation in the Chapel of Domus Sanctae Marthae, October 13, 2014, available at http://w2.vatican.va/con tent/francesco/en/cotidie/2014/documents/papa-francesco-cotidie_20141013 _the-god-of-surprises.html.

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Rules Are Not Enough

Why Judges Need Empathy

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During the first year of his presidency, Barack Obama said he judged “empathy” to be a desirable quality in a Supreme Court appointee. He set off a discussion that was as confused as it was contentious. But it raised an important and enduring question: What exactly is “empathy,” and how does it relate to the task of a judge?

Obama himself described it as a quality that allows judges to take into consideration the concrete effects of their rulings, especially on ordinary people. He said in an interview that he “will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives—whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.”

Obama’s critics worried that “empathy” is not merely undesirable, but inconsistent with the fundamental obligations of a judge. Republican Senator Orrin Hatch feared it is a code word for judicial “activism,” a potent political issue, if a notoriously elusive concept. In an opinion piece in the Washington Times, Wendy Long argued that empathy was inconsistent with impartiality. She truculently accused Obama of being “the first president in American history to make lawlessness an explicit standard for Supreme Court justices.”

Despite appearances, this debate is not simply a partisan skirmish. It involves important and enduring questions about what it means to be a good judge. Jurist and Catholic moralist John Noonan tackled the question head-on in Persons and Masks of the Law: Cardozo, Holmes, Jefferson, and Wythe as Makers of Masks.

Noonan argues that at the heart of the legal system are two equally essential components: rules and persons. We all know the importance of rules—they are impersonal, they are impartial, they are framed with a concern for the larger good of the whole community. Neglecting the claims made by rules produces judicial “monsters” who strangle justice with bribery, arbitrariness, or bias. As Noonan notes, the Book of Deuteronomy describes God as a judge who “regardeth not persons nor taketh rewards.” A good judge must have due regard for the rules.

But rules are not enough. “There is no reason to suppose that justice is the only virtue required of a lawyer, legislator, or judge,” Noonan writes. “If [judges] are not to cease to be human, they must cultivate the other virtues of humanity.” Without these other virtues, the application of rules can become “merciless and inhuman.” Playing on the dual meaning of the Latin word persona as both “person” and “mask,” Noonan argues that rules can become masks that conceal the human faces—and human needs—of the persons to whom they apply. A judge can hide behind rules to escape responsibility for the harm he or she is causing to other human beings.

In my favorite chapter in the book, Noonan examines the persons and rules behind the most famous case in American tort law, Palsgraf v. Long Island Railroad (1928). Helen Palsgraf, a middle-aged custodian taking her two daughters to the beach on a hot summer day, was injured in a freak accident on a train platform. She sued the railroad for negligence, winning $6,000 (a sum equal to fourteen times her annual income) in damages in a jury trial. Reversing the verdict on appeal, the eminent judge Benjamin Cardozo took the money away from her. He articulated a rule under which the railroad was not negligent, because it could not have reasonably foreseen the harm to Palsgraf. Noonan wonders why Cardozo thought it was preferable to announce a rule that makes a single unlucky passenger bear the entire loss from an accident instead of assigning it to the railroad, which could distribute the cost of compensating the injured person among all passengers by slightly raising ticket prices. Noonan reserves his greatest censure, however, for Cardozo’s decision to impose the costs of the litigation on Palsgraf—costs that equaled an entire year of her income. In principle, imposing the costs of litigation on a plaintiff or defendant was done at the discretion of a judge. In pr...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Introduction: Life in the Crisscross
• Part 1: Law as a Teacher
• Part 2: Religious Liberty and Its Limits
• Part 3: Conversations about Culture
• Part 4: Conversations about Belief
• Part 5: Cases and Controversies
• Conclusion: Tradition and Transformation
• Suggestions for Further Reading
• About the Author
• Index